Postscript To the Concept of Law

There has over recent years been a debate between Hart and Dworkin over the concept of a Legal system. Hart a positivist is one who regards a law as being valid not by reference to some higher law or moral code, but by reason of no more than its existence1. Dworkin through his 'interpretive' theories of settled law and legal systems on the other hand, expounds that particular laws are not really laws. He has become the main critic of Harts thesis which is based on analysis and 'description'. Before his own death Hart advanced arguments to Dworkins objections of his positivist concept of law.

My purpose here is to evaluate the replies given by Hart in the Postscript to The Concept of Law as well as summarizing his arguments contained within it. RULES AND PRINCIPLES. The main point of dispute and from which all other criticisms flow is that in representing law as consisting of rules, the picture that Hart draws is defective because it ignores the existence and significance of another form of legal standard – principles, which play an important and distinctive part in legal reasoning and adjudication2.

However Hart points to the fact other critics that have found the very same, have ruled it as 'a more or less isolated fault'3 which can be easily repaired by the inclusion of legal principles alongside his legal rules as components of the legal system. Hart claims that he could do this without any serious consequences for his theory as a whole, and agrees that it is a flaw in his book that he only manages to touch upon principles4. This admission by Hart shows that he is willing to accept criticism when it logical and thus willing to adapt changes.

Logic is the key element in all useful and good theories so Hart has no choice but to integrate legal principles into his theory. However it was Dworkins claim that this could not be done without Hart abandoning the central doctrines of his theory, and so proving that his theory has fatal omissions, making it unable to stand up. Before attempting to evaluate the adequacy of Harts reply we should identify in much more detail what principles are and what rules are and the differences between them, as these two concepts are the bases of the claims of the two theorists.

Firstly compared with rules, principles are broad, general and unspecific. A number of rules could be cited that are instances of the application of a single principle5. Secondly, principles because they refer more or less to some purpose, goal, entitlement or value are desirable to maintain and so not only as providing an explanation or rationale of the rules which exemplify them, but at least contributing to their justification6.

These two distinctions are accepted by Hart as valid, but here is a difference of view on the third distinction. Dworkin sees that rules 'function in an "all or nothing" manner in the sense that if a rule is valid and applicable to a given case then it conclusively determines the legal result or outcome'. Legal principles differ from such 'all or nothing' rules in that while they may point or count in favour of a decision, they do not invariably determine the outcome7.

Hart refers to this feature of principles as their 'non-conclusive' character8. Hart replies that he sees no reason to accept a sharp distinction between legal rules and legal principles and or the view that if a valid rule is applicable to a given case it must, unlike a principle, always determine the outcome9. This is a logical argument on Hart's part, after all a basis for this view cannot be easily found – so the question is whether it was an assumption of the part of Dworkin to create this 'all or nothing' rule? Of course not.

One can see that rules have more power to determine the outcome of the case than principles – this can be taken to be accepted by both theorists. But it could well be that Dworkin on his part has slightly exaggerated the extent to which rules are influential in relation to principles; rules do not have an all or nothing character as Hart goes on to show. He cites the case of Riggs v. Palmer which was also used by Dworkin, to show that the fact there is sometimes conflict between rules and principles and that the principle will sometimes win10.

He takes this to mean that rules don't possess that all or nothing character that Dworkin assigns them. Hart claims that he did not intend in the use of the word 'rule' that legal systems comprise only 'all or nothing' rules. Hart rightly gives credit to Dworkin for illustrating the importance of principles and acknowledges that they are an important feature of adjudication and legal reasoning11.

However, though Hart didn't use the term 'principles', in Concept he talked of 'variable legal standards' which specified factors to be taken into account and weighted against others in reaching a decision. He mentioned how these would not be better in some areas of conduct in comparison to near conclusive rules12. Thus, Hart puts forward a very convincing reply by logically showing that he could include principles without having to abandon the central doctrines to his theory, and so his thesis stands unshaken.